SARASWATI MEHER Vs. JADUMANI MEHER

JUDGEMENT

(1.) THIS is a revision challenging the order of the Sub divisional Judicial Magistrate, Bargarh passed on the petitioner's application Under Section 125 of the Criminal Procedure Code. She filed the said application Under Section 125 of the Criminal Procedure Code claiming maintenance at the rate of Rs. 250/ - -per month from the present opp. party on the ground that she is his wife and that she has been neglected to be maintained by him.

(2.) THE petitioner alleged that she married the opp. party in accordance with their caste and custom and they lived as husband and wife for some years. Gradually the opp. party and his mother illitreated the petitioner and she was assaulted on many occasions. She was not. liked in the family of her in -laws, as no child was born to her. In course of time ill -treatment reached at such a stage that it became impossible on her part to tolerate. In the middle of the year 1981, she was assaulted by the opp. party by which her left eye was affected for which no treatment was carried on at the instance of the opp. party. It is the brother of the petitioner, who took her to the hospital where she became an .Indoor patient from 6 -6 -1981 to 12 -7 -1981, but the treatment could not save her eye. After being discharged from the hospital, she was taken to the house of the opp. party but the opp; party refused to accept her and did not allow her to remain in his house. Since then the petitioner has been residing with her mother. It has been further alleged that all attempts for a reconciliation have failed at the instance of the opp. party. The petitioner had sent a notice on 19 -1 -1982 to the opp. party through her Advocate and there was no response by the opp. party to the same According to the petitioner the opp. party has married again to one Samari Meher, daughter of Dasarath Meher on 5 -4 -1982 and they have been living as husband and wife. It has been alleged that the opp party is a business man, whose monthly income is about Rs. 700/ - out of which the petitioner claims Rs. 260/ - per month as maintenance.

(3.) BOTH parties led evidence in support of their respective cases. The learned S. D. J. M. in the impugned judgment came to hold that the petitioner is the legally married wife of the opp. party but dismissed the prayer for grant of maintenance on the ground that the plea of ill -treat -inent has not been proved and that the petitioner herself is capable of and in fact earning her own livelihood. The said finding regarding the status of the petitioner as the mawied wife of the opp party is not seriously disputed, in view of the admission in the objection filed by the opp. party In the Court below that he had been living with the petitioner as husband and wife for many years. Reading of the evidence adduced in the case by the petitioner would lead to an irresistible conclusion of their legal relationship as husband and wife. The plea of the opp. party that both were living together without a legal marriage must be discarded